Toxic sludge oozes at the Supreme Court.

Oral argument from the court.
Feb. 24 2009 6:43 PM

Superfun!!!

Toxic sludge oozes at the Supreme Court.

Justice Ruth Bader Ginsburg. Click image to expand.
Justice Ruth Bader Ginsburg

I leave it to you to decide whether it's only too fitting that a trio of female superlawyers dominated oral argument in today's Supreme Court case about cleaning up complex messes. First, you have the oral advocacy dream team of Maureen Mahoney and Kathleen Sullivan, defending, respectively, the Burlington Northern and Santa Fe Railway Company and Shell Oil. If any two women can possibly put the "superfun" back into a Superfund case, they can. And then you have Ruth Bader Ginsburg, back on the bench just weeks after surgery for pancreatic cancer. Ginsburg is so peppy today, she can't stop asking questions long after the red light has illuminated. Ginsburg shows perfect command of the record—footnotes and citations hurled fast and furious—while poor Justice Antonin Scalia, suffering from what sounds like laryngitis, throws his hands up in a mostly fruitless effort to get a word in.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

This is a case that is perhaps best understood by way of a metaphor. Say your 3-year-old and your 5-year-old have dumped a bin of Legos all over the living room floor. (Except pretend these Legos ooze soil fumigant and toxic chemicals.) You have no capacity to figure out which of them did what. All you know is that your in-laws are coming, and the floor must be cleaned. What rules govern the allocation of responsibility for the dumping? What if one kid dumped only 3 percent of the Legos? Does he have to clean up the whole mess? What if one kid told the other kid to dump the Legos? Or what if he knew the other kid was going to dump the Legos and failed to stop him? And while we're at it, what about the kid who brought the damn Legos over for a birthday party last April? How about the grown-up who drove that kid to the party? Shouldn't Andrew's mom be cleaning those Legos, too???

It rapidly becomes clear at oral argument this morning that folksy hypotheticals of this nature are not going to get us all that far in clarifying a Superfund case.

In 1980, responding to environmental disasters such as the one at Love Canal, Congress passed the federal Superfund law to clean up hazardous waste sites. While it appears to be a complicated statute, the gist is that liability will be imposed for polluters or anyone who has ever met a polluter, including: the current waste-site owners, the prior owners, the "arrangers" of the waste transfer (more on this momentarily), and the transporters.

Today's consolidated cases, Burlington Northern-Santa Fe Railway Co. v. U.S. and California, and Shell Oil v. U.S. and California, both involve an agricultural chemical distribution facility in Arvin, Calif., called B&B. They had possibly been dumping toxic goo since 1960. In an effort to recoup the money it spent to clean up the site, in 1996 the EPA sought to impose liability on both the railroad that owned part of the contaminated land and Shell Oil, which sold a pesticide known as D-D to B&B. (I know, Zzzzzz …)

The idea was that since B&B was out of business, someone had to pay for the cleanup, because otherwise the cost falls on the taxpayer, who is already the victim of toxic dumping. Both the railroad and Shell lost in the trial court and lost again at the U.S. Court of Appeals for the 9th Circuit, chiefly because the government always wins these cases. A 1989 law review article by Roger Marzulla described government lawyers bringing Superfund cases as needing to say only: "May it please the court, I represent the Government and therefore I win."

The appeals court found Shell liable because it "arranged for" the disposal of hazardous substances (called "arranger liability"). It found the railway owned the dump site. Then it held both companies jointly and severally liable for the whole cost of the cleanup. If this strikes you as having all the basic fairness of "you smelt it, you dealt it"—well, yeah. So the companies are appealing yet again.

Sullivan represents Shell. (Disclosure: Sullivan taught me Con Law II.) She takes umbrage at being labeled an "arranger" of toxic dumping because her client did not "arrange" using the ordinary meaning of the word: "make plans or preparations to do something." Her client sent D-D to B&B via common carrier tank truck without knowledge of, or plans for, the spillage and leakage. Ginsburg wonders whether Shell is attempting to "arrange themselves out of arranger liability."

No way, says Sullivan. "The key for arranger liability is that you arrange for spills." Shell did no such thing. Justice Samuel Alito screws up his face in that way he does that suggests he sees dead people and asks whether there would be arranger liability if Shell chose to deliver its waste by picking a cheaper transport company that caused more spillage than its competitor. Sullivan replies that Shell received no economic benefit from the pollution. She adds that the courts' theory of arranger liability "would mean that the chlorine company is liable when the pool-supply store spills a few drops of chlorine" or "the maker of perchloroethylene is liable when the dry cleaning establishment spills dry cleaning fluid."

Ginsburg observes that "Shell had a manual which told its purchasers how to handle this material, and was well aware that B&B was not following the precautions laid out in the manual." Sullivan says it's "perverse" to punish manufacturers for coming up with instructions about how to handle their products safely.

Mahoney presents the second part of the consolidated case: That the court wrongly imposed joint and several liability on Shell and the railroad rather than "apportioning" responsibility between the dumpers. This depends partly on a dispute over whether, as the trial court found, Shell and the railroad pursued a "scorched earth" defense, accepting no responsibility and thus contributing no information that would assist the trial court in apportioning liability. Mahoney and Ginsburg spar over this point for some time, with Mahoney insisting that the record is full of evidence to support apportionment: "What the Ninth Circuit says is that, even though B&B began dumping thousands of gallons of chemicals in 1960, that all of that harm that was caused by B&B has to be paid by the railroads—that's almost $40 million now—because they can't prove with precision whether their share of the damages might be zero or 1 million or 9 million."

Deputy Solicitor General Malcolm Stewart tries to argue that he represents the government, so he wins. (See Marzulla, above.) But for some reason, Justices Stephen Breyer and David Souter have developed a massive soft spot for the polluters in this case and thus bludgeon him with unanswerable hypothetical questions. Breyer soars for at least three minutes on the wings of an inscrutable fact-pattern about whether Hewlett Packard is responsible for Justice Breyer's repeated failure to properly dispose of his printer cartridges. Or his car batteries. Breyer is teeming with ecological guilt this morning. Scalia and Stewart do a few turns around the floor about when Shell gave up ownership of its toxic sludge. It sounds very much like the fight in which the kid who took apart the Lego Death Star, to make a Lego meth lab, insists the kid who built the Death Star needs to clean the whole thing up.

The job of cleaning up this mess of a case falls to Sullivan, who caps her rebuttal with a mocking poke at the lower courts. They slapped her clients with a monster cleaning bill based on the "heroic assumption that a few drops, spilled two football fields away of a volatile substance that evaporates twice as fast as water, would be picked up by a rainfall that could happen at the relevant quantities only once every 10 years." Maybe this isn't a case about sending women in to clean up messes. Perhaps it's just the opposite: Sullivan and Mahoney are so cool, they can make refusing to clean up after yourself look good.